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2006 DIGILAW 721 (JHR)

Debeshwar Munda @ Dimali v. State of Jharkhand

2006-06-19

D.P.SINGH

body2006
JUDGMENT By Court.-Both the appellants have preferred this appeal against the judgment dated 23rd December, 2000 and order of sentence dated 4th January, 2001 passed by the Sessions Judge, Gumla in Sessions Trial No. 185 of 1998 whereby and whereunder the appellants have been convicted under section 376/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years each. 2. Brief facts leading to their conviction are that in the morning of 10.4.1998 the informant Anita Kumar aged about 15 years was going to her school on bicycle alongwith -her friend Parvati Kumari from village Baranda Dipatoli, P.S. Bharno. Further stated that when she reached half way in between the school and her house near village Kadru Karang, P.S. Sisai the appellants overpowered the informant showing dagger. Further stated the appellant no. 2 Kuldip Kujur thereafter took away her bicycle while Parvati fled away. According to the informant then appellant no. 1 Dipeshwar Munda forcibly took her in the orchard and committed rape. The prosecution story is further that she was raped twice at the point of dagger. 3. The informant returned to her house in disturbed condition and narrated the incident to her mother P.W. 1. The informant alongwith her father and brother went to police and orally reported which was recorded by Sisai Police at 12.15 hours at Block/Naka. Sisai police registered Sisai P.S. Case No. 42 of 1998 under section 376/34 of the Indian Penal Code against both the appellants and investigated the case to finally submit charge-sheet against them. The case was committed for trial by the court of sessions where charges were framed against both the appellants on 26.11.1998. The learned lower court after examining witnesses found and held both of them guilty under section 376/34 of the Indian Penal Code and sentenced them to serve R.I. for ten years each. 4. The present memo of appeal has been preferred on the grounds that the appellants were innocent and implicated falsely in this case. It is further asserted that learned trial court has not considered the contradictions available in the evidence of the witnesses. It is also asserted that except the informant no eye-witness has come to support her version. According to the appellants the non-examination of Parvati Kumari has materially prejudiced the defence. It is further asserted that learned trial court has not considered the contradictions available in the evidence of the witnesses. It is also asserted that except the informant no eye-witness has come to support her version. According to the appellants the non-examination of Parvati Kumari has materially prejudiced the defence. According to this memo of appeal the medical report does not support the prosecution version rather supports the defence that false prosecution was lodged. It is further asserted that even if the prosecution version is believed, appellant no. 2, Kuldip Kujur should not have been convicted, as he has not taken part in the alleged offence. Therefore the appellants deserve to be acquitted of the charges. 5. The points stressed before this Court were considered alongwith evidence available on the case records. The prosecution has examined six witnesses in this case out of which P.W. 5 is I.O. and P.W. 6 is doctor. The doctor has opined regarding the age of the informant between 18 to 19 years. It has also been mentioned that there was no injury on the private part, nor any symptom of sexual intercourse. P.W. 1 is mother of the informant while P.W. 3 is brother and P.W. 4 father of the informant. They have supported the prosecution version to the extent that Anita came back in the forenoon of 10.4.1998 and reported to them that Dipeshwar has raped her while she was going to school. The place of occurrence as asserted by the informant was an orchard in between the house of the informant and her school. She has further asserted that Parvati was going with her on the bicycle when the incident took place. She has given details how she was raped. P.Ws. 1, 3 and 4 have supported the informant to this extent. All of them have been cross-examined at length, in which they were suggested that the FIR was lodged just to involve the appellants due to village rivalry. This suggestion appears to be farfetched because none of the prosecution witness may like to involve the informant an unmarried daughter to implicate the appellants falsely. All of them have been cross-examined at length, in which they were suggested that the FIR was lodged just to involve the appellants due to village rivalry. This suggestion appears to be farfetched because none of the prosecution witness may like to involve the informant an unmarried daughter to implicate the appellants falsely. It is also falsified from the facts available on records that neither any defence witness has been examined in support of the defence nor any document has been produced before the lower court to substantiate that there was any previous dispute between the family of the informant and the appellants. However from the facts available on the records the participation of the appellant no. 2 in actual offence is not made out. It is the version of the prosecution that Kuldip has gone away with her bicycle. Therefore, I find that the conviction of the appellant no. 2, Kuldip Kujur cannot be sustained. Accordingly he is acquitted of the charges and released from the liabilities of his bail bond. So far the involvement of appellant no. 1 Dipeshwar Munda is concerned, the prosecutrix has specifically named him to have committed the offence. The defence of false prosecution may not be accepted in the facts stated above. The evidence of doctor, P.W. 6 that injuries on private part not available cannot be made the sole criteria to disbelieve the prosecution version. In such facts, it has been consistently upheld by the Apex Court that the version of the prosecutrix deserves to be given proper respect and accepted unless it is found highly improbable. 6. For the reasons, discussed above, I find that the prosecution version regarding the alleged rape has been properly proved with the evidence of P.W. 2 and corroborated by P.Ws. 1, 3 and 4 in substance. Accordingly, I find and hold that the prosecution has been able to prove the charges under section 376 of the Indian Penal Code against appellant no. 1 Dipeshwar Munda. 7. At this stage the learned counsel for the appellants submitted that appellant no. 1 has remained in custody throughout his trial and during the pendency of this appeal, as such, he has already remained in custody for eight years. Therefore the period of sentence may be reduced to the period already undergone. 1 Dipeshwar Munda. 7. At this stage the learned counsel for the appellants submitted that appellant no. 1 has remained in custody throughout his trial and during the pendency of this appeal, as such, he has already remained in custody for eight years. Therefore the period of sentence may be reduced to the period already undergone. On consideration of the facts and circumstances, discussed above, I find that the ends of justice would be served if the appellant no. 1 is sentenced to serve R.1. for eight years. 8. In result, the appeal preferred by the appellants is partly allowed with modification of sentence for appellant no. 1. The appellant no. 1 may be released from the jail, of not required in any other case. The appellant no. 2 is acquitted of the charges and released from the liabilities of his bail bond.